Director of Public Prosecutions v Skeiner
[2023] VCC 388
•8 March 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01005
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SKEINER, DAVID |
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JUDGE: | His Honour Judge Maidment | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 February 2023 | |
DATE OF SENTENCE: | 8 March 2023 | |
CASE MAY BE CITED AS: | DPP v Skeiner | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 388 | |
REASONS FOR SENTENCE
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Subject:Plea - sentencing
Catchwords: Arson – conduct endangering persons - commit indictable offence whilst on bail
Legislation Cited: Mental Health Act 2014
Cases Cited:
Sentence: 520 days' imprisonment (=PSD) + 24-month CCO
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Roper | Office of Public Prosecutions |
| For the Accused | Ms K. Ljubicic | Victoria Legal Aid |
HIS HONOUR:
1 David Skeiner, you have pleaded guilty to an offence of arson for which the maximum penalty is imprisonment for 15 years, and to an offence of conduct endangering persons for which the maximum penalty is imprisonment for 5 years.
2 You have also admitted the related summary offence of committing an indictable offence whilst on bail for which the maximum penalty is 3 months’ imprisonment. You have asked me to take that into account.
3
You have admitted a prior criminal record, and I note that the last prior conviction was in August 2000 for which you were sentenced to imprisonment for
14 years with a non-parole period of 11 years.
4 The prosecution tendered and relied upon a summary of prosecution opening which sets out the basis of the case against you on these charges. The offences of arson and conduct endangering persons recklessly arose out of an incident which occurred on 3 October 2021 shortly after 2.30 pm.
5 At that stage, you had been separated from your wife and family. In August of that year you had been arrested for setting fires at your home address. They are to be the subject of a hearing on 14 March this year. You will be pleading guilty to that offence along with driving offences. They are not prior convictions but it is relevant to note that the incident in August 2021 also arose out of you setting fires.
6
The circumstances of the offences charged on the indictment and for which I have to deal with you today arose out of the fact that you had been living at an address in Ovens Street, Brunswick in Victoria, with your brother-in-law and his then partner. Both of them are now deceased.
7 On 3 October 2021 at about 2.30 pm, you were at the address in Ovens Street, Brunswick with your brother-in-law and his then partner. There was some conversation between you, after which they left the premises to take their dog for a walk. They returned about 20 minutes later and you were asked by your brother-in-law to leave the address. You refused to leave and there was an argument between you. You are said to have engaged in throwing objects at your brother-in-law and he started throwing bricks back at you. He then stepped out of the building to de-escalate the situation between the two of you. He returned a few minutes later to find that you had set alight a mattress inside the doorway of the premises. You barricaded the door and were continuing to be abusive towards him.
8 Your brother-in-law dragged the mattress into the driveway outside. You set about hitting him. During that process he sustained burns from the mattress. However, he successfully dragged the mattress out of the building. You then locked the door and despite attempts from your brother-in-law and his then partner to persuade you to open the door, you lit a number of fires within the building. A number of members of the public witnessed what was going on and called Triple 0. Police attended the premises at about 4.23 pm. They extinguished the burning mattress with a portable fire extinguisher. The fire brigade arrived and Ambulance Victoria also attended.
9 You were requested to leave the premises. You refused to do so, and stopped communication with police. In that time the fire had engulfed the premises including the room in which you had barricaded yourself. The police eventually persuaded you to come out and surrender yourself. You were escorted away to a waiting ambulance and were conveyed to the Alfred Hospital under provisions of the Mental Health Act. You had apparently not sustained any burns but you were having breathing difficulties as a result of smoke inhalation.
10 Emergency services eventually extinguished the fire, which had by then caused significant damage to the building. Although the costs of the damage have never been accurately assessed, there was serious damage to the roof, which had collapsed.
11 There are no victim impact statements.
12 Turning to matters personal to you.
13 Your counsel provided me with written submissions dated 20 February 2023, along with a report from Alison Mynard, Clinical Psychologist, dated 30 September 2022, and a supplementary report from the same author dated 12 January 2023. She also provided me with a mental health treatment plan from your general practitioner and a letter, together with hospital records, which showed that you were admitted to hospital in October of 2020, apparently as a result of an attempted suicide by carbon monoxide poisoning. Apparently, you were discovered at Fawkner cemetery and fortuitous intervention prevented you succeeding in that endeavour.
14
Dealing with the submissions made on your behalf, it is accepted by your counsel that the damage to the building was extensive. Nevertheless it was submitted that your decision to light the fire was unplanned. The offending was not committed in the context of the furtherance of some criminal activity or for the purposes of obtaining profit or gain. The offending occurred in a semi-industrial area where at least two members of the community were present. Although it was acknowledged that setting fire in a semi-industrial area is an inherently dangerous act in that other buildings can catch fire and the fire can spread out of control, there were other people within the vicinity at the time who were always likely to call emergency services and prevent such an event occurring.
15 It was pointed out that in the lead-up to the offending, you had been drinking alcohol and were intoxicated. It was made clear to me that it was not suggested that that fact was mitigating, rather it was part of the context in which the offending occurred.
16 You grew up in the inner suburbs of Melbourne, in a housing commission environment in Brunswick. Your parents separated when you were five years of age. You have a younger sister and your mother struggled financially working in two jobs. Your father was a drinker who had some criminal history and although you maintained a relationship with him and his second wife (and there were three children from her previous relationship) you never felt comfortable in that home and indicated to your counsel that you felt like a stranger when you walked in.
17 You had limited education and left school in Year 10 to start work. You have a good work record and up until 2021 you were gainfully employed, most recently in meat packing and transport. You got into bad company as a young man and your criminal record goes back to when you were aged 18. You were convicted of attempted murder in the year 2000 and sentenced to a substantial term of imprisonment.
18 You had suffered from substance abuse, particularly alcohol abuse, from a young age. You had engaged in alcohol treatment and there was a period of abstention from alcohol from August 1999 when you went into custody until February 2020, when you relapsed into alcohol use. That coincided with the early part of the COVID pandemic. At that stage you had been married to your wife for some eight years, having had a relationship with her for about 10 years. The two of you share two children, a daughter aged nine years and a son aged four years. You apparently lived a happy life together until your relapse into alcohol use in 2020. I have already referred to your suicide attempt in October of 2020.
19 In February 2021, your father-in-law passed away. You had had a very good relationship with him. That caused considerable disruption within the family unit. You were subsequently diagnosed with Bereavement Disorder and you became depressed. The tense environment within the home, and your drinking, led to the breakup of your marriage.
20 Following the incident where you lit fires at your home in August 2021, a family violence intervention order which prevented you from residing at your home address was obtained. From then you commenced residing with your brother-in-law at the address in Ovens Street, Brunswick, where the offending occurred.
21 It is to your credit that you have pleaded guilty and to your credit that you made full admissions to your offending to the police. It is acknowledged that you offered pleas of guilty to these offences at the earliest possible opportunity and by facilitating the course of justice and acknowledging your criminal responsibility, your conduct and subsequent pleas are indicative of remorse.
22 It is to be noted that you have pleaded guilty in these COVID times and the utilitarian benefit of a plea of guilty in these circumstances is to be given significant weight in the sentencing process.
23 It seems clear from everything you said to Ms Mynard and to the police that you are genuinely remorseful for your conduct. It seems equally clear to me from the psychological assessments of you that at the time of the offending you were suffering from a severe depression. Ms Mynard's reports clearly provide a basis for concluding that there was a nexus between that severe depression and the offending conduct.
24 You have suffered from a persistent depressive disorder for many years and, coupled with Alcohol Abuse Disorder and Complex Bereavement Disorder which, along with the major depressive order that you were apparently suffering from at the time of these offences, enlivens the Verdins principles. I do not understand the prosecution to be disputing that connection. Those mental impairments are capable of reducing your moral culpability for these offences. I think during the plea hearing I characterised your conduct, both in lighting fires at your home and lighting the fires the subject of these offences, as cries for help and reflective of a desire to commit suicide.
25 I do not think I need to go into more detail with the content of Ms Mynard's reports. Suffice to say that I found them very useful in the careful analysis of the facts and the basis for concluding that there is a nexus between your mental impairments and the offending conduct. And it is a pleasure to read well considered and argued and responsible opinions.
26 Imprisonment will have the capacity to compound the symptoms and no doubt has compounded your symptoms. There has been and will continue to be a significant risk of further deterioration in your mental impairments from prolonged incarceration. Your mental impairments have made and will continue to make serving a term of imprisonment the harder.
27
Arson is always a serious offence. There is a very high degree of need for denunciation of such conduct by the courts as well as the need to impose just punishment and to deter others from engaging in similar conduct. Your mental impairments are clearly relevant, but the other consideration that the court has to feed into the sentencing process is the need to protect the public. However, the incident occurred in circumstances where you must have appreciated that there was an inevitability that emergency services would be called. In those circumstances it seems to me that this offending can be distinguished from those much more serious cases where fires are lit surreptitiously and in circumstances where it is sought to avoid early detection with a view to ensuring the maximum impact of damage.
28 Given your history, and I think I am entitled in these circumstances to take into account the events of August of 2021 where you set fires at home, there is a continuing need I think to consider individual deterrence in the sentencing process. It is also necessary for me to balance those factors against the need to promote your rehabilitation to the extent consistent with the proper application of sentencing principles. It is not an easy task in this case, but I have come to the conclusion that the public will be better protected in the long term by promoting your rehabilitation with a suitably calibrated Community Correction Order, coupled with a sentence of imprisonment equating to the period that you have already served, which I understand is 520 days. Do we agree with that?
29 MR ROPER: Yes, Your Honour, that is my calculation.
30 HIS HONOUR: I cannot impose a Community Correction Order unless you consent to it, Mr Skeiner. I have no doubt that you have discussed that with your counsel?
31 OFFENDER: Yes, Your Honour, I have.
32 HIS HONOUR: Yes. And I am going take you through the proposed terms of such an order. Listen carefully please and I will ask you at the end of that whether first of all you are prepared to comply with the terms of the order that I propose and secondly, whether you consent to being placed on that order, do you understand?
33 OFFENDER: Yes, I do, Your Honour.
34 HIS HONOUR: All right. I have received the Community Correction Order assessment outcome report, a mental health advice and a Forensicare report, both of which point to the desirability of treatment and rehabilitation in relation to mental health, amongst other conditions. I am now going to go through the conditions which apply to the order that I propose, so listen carefully.
35 The order that I propose will commence today and end on 7 March 2025. That is a two-year order, and you will be required to attend the Broadmeadows Community Correctional Services, at 25-27 Dimboola Road, Broadmeadows within two clear working days after the commencement of this order, which will be 10th of March - is that right?
36 MS LJUBICIC: That is right but I just might raise this now, that he won't be released from custody - he's still being held on the other matters that are being dealt with on 14 March.
37 HIS HONOUR: In that case, I think probably the order needs to be amended to read, 'upon his release from custody'.
38 MS LJUBICIC: Yes.
39 HIS HONOUR: Within two clear working days after your release from custody, you will be required to report to the Broadmeadows Community Correctional Services at the address that I have just read out, and then receive instructions from them.
40 The mandatory terms that apply to all Community Correction Orders are as follows:
- you must not commit another offence for which you could be imprisoned during the time that the order is in force;
- you must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations, which requires you to ensure that you are not drunk or drug affected when you turn up for appointments or for any work component, and otherwise a number of other regulations of that nature;
- you must report to and received visits from the Secretary of the Department of Justice or his or her delegate;
- you must report to the Community Corrections Centre within two clear working days of your release from custody;
- you must let a Community Corrections officer know within two clear working days of you changing your address or job;
- you must not leave Victoria without first getting permission to do so from the Secretary of the Department of Justice or his or her delegate; and
- you must obey all lawful instructions from and directions of the Secretary of the Department of Justice or his or her delegate.
41 In addition to those mandatory terms:
- you must perform 200 hours of unpaid community work over a period of two years, as directed by the regional manager, and I order that 120 hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition - if you fail to comply with that order, the Secretary of the Department of Justice or his or her delegate may give you a direction to perform additional hours of unpaid community work in accordance with the Sentencing Act;
- you must be under the supervision of a Community Corrections officer;
- you must undergo assessment and treatment (including testing) for alcohol abuse or dependency as described as directed by the regional manager;
- you must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the regional manager; and
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you must participate in programs and/or courses that address factors relating to the offending as directed by the regional manager.
42 Counsel, there is one other matter that I need to ask you about. What is his address going to be?
43 MS LJUBICIC: My instructor will just have those instructions now. His stepfather is here, and he'll be residing with his stepfather.
44 HIS HONOUR: All right.
45 First of all, do you understand all those terms and conditions? I must say to you before you eventually consent, that if you breach any of the terms of the order during the period when the order is in force, you may be brought back to this court and probably before me, and you could be re-sentenced for these offences, which would almost certainly mean a longer term of imprisonment. If you commit an offence punishable by imprisonment during the period of the order, you could also be sentenced for that or those offences. In addition, you could be sentenced to up to three months imprisonment for merely breaching the terms of the order. Do you understand all those facts?
46 OFFENDER: Yes, Your Honour. I will agree to all the terms and anything else I'd need to do. I won't breach the order Your Honour, and I'll show respect by the judge's decision and complete it, and do whatever it takes.
47 HIS HONOUR: The sentencing orders that I pronounce therefore are that on Charge 1 on the indictment you are convicted and sentenced to imprisonment for 520 days.
48 On Charge 2, you are convicted and sentenced to imprisonment for a period of 365 days.
49
On the related summary offence of committing an indictable offence whilst on bail, you are convicted and sentenced to imprisonment for 30 days.
50 The total effective sentence is imprisonment for 520 days. I declare 520 days as time to be reckoned as served on the term of imprisonment that I have imposed.
51 But for your pleas of guilty, I would have sentenced you to imprisonment for three years and six months with a non-parole period of two years and three months.
52 I order in respect of each of Charges 1 and 2 that you be the subject of a Community Correction Order for a period of two years, commencing upon your release from custody and that order will be in the terms that I have read out to you and with which you have now consented to comply and to be placed upon.
53 Given you are not in a position to sign the order now, I will treat your verbal consent to be placed on the order as sufficient to make the order by signing it myself.
54 MR ROPER: There are no ancillary orders sought, Your Honour.
55 HIS HONOUR: Mr Skeiner, I hope that you can get your alcohol issues under control, and that you can work successfully on your mental health when you're able to do so. And that you can put this behind you, not just for your own sake, but for the sake of your children and your capacity to have a positive influence on their lives.
56 OFFENDER: Thank you.
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